Wisconsin's Politics Might Finally Get Un-Rigged

The Nine Wise Souls provided us with an interesting morning. They upheld the right of an Asian-American band to call itself The Slants under U.S. copyright law. The government had blocked the name on the grounds that it was offensive. That rule is now dead as dust. Too bad, I was going to file suit to have the name "Trump Plaza" denied copyright under that same rule. Anyway…

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In a more important decision that likely will get lost in the shuffle, the Court threw out most of a lawsuit brought by three Muslim men who'd been detained in Manhattan during the immediate aftermath of the 9/11 attacks. This case was of additional interest because one of the named defendants was Robert Mueller, the Trump-Russia special counsel, who was director of the FBI at the time. The Court left intact the suit against the warden of the Metropolitan Detention Center in New York where, the suit alleges, the plaintiffs were badly treated, up to and including having been beaten and slammed into walls.

But the most far-reaching decision that the Court reached on Monday was to agree to hear Gill v. Whitford, a case involving the partisan gerrymandering of the Wisconsin state legislature. The Court has confronted racial gerrymandering a number of times, but it's rarely taken on partisan gerrymandering. The last time was 2004, in a case out of Pennsylvania. Back then, the Court decided against the plaintiffs on the grounds that it could not find an acceptable standard by which to judge whether a partisan gerrymander had violated the Constitution.

This is another crack at it, and with a substantially more obvious campaign of finagling. From the WaPo:

That state's legislative leaders asked the Supreme Court in their brief to reject any effort that "wrests control of districting away from the state legislators to whom the state constitution assigns that task, and hands it to federal judges and opportunistic plaintiffs seeking to accomplish in court what they failed to achieve at the ballot box." But the dozen plaintiffs — voters across the state — said the evidence laid out in a trial in the Wisconsin case showed that "Republican legislative leaders authorized a secretive and exclusionary mapmaking process aimed at securing for their party a large advantage that would persist no matter what happened in future elections." In the election after adoption of the new maps, Republicans got just 48.6 percent of the statewide vote, but captured a 60-to-39 seat advantage in the State Assembly.

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In deciding to take the case, the Court split 5-4 along strictly ideological grounds in favor of issuing a stay in a lower-court decision mandating that new legislative districts be drawn this fall. This would seem to indicate two things: one, that the plaintiffs have a long haul up a dirt road, and two, that, once again, Anthony Kennedy is your swing justice, as he was in the Pennsylvania case nine years ago. Basically, though, in matters like this, the Roberts Court consistently has ruled against state legislatures that were too blatant in their discriminatory intent. Maybe that's because the Chief feels a little guilty about his part in trashing other aspects of the franchise.

Whatever is the case, the Court's main warning to ambitious state politicians in this regard can be summed up in the phrase, "Dude, don't be so…obvious."

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